The Effects of Adultery on Your Florida Divorce Case

In Florida, the laws regarding divorce have followed a “no-fault” system since 1971. Today, there are only two bases for obtaining a divorce: that the marriage has irretrievably broken down, or that one spouse has been declared mentally incompetent for at least three years. Before that, there were nine bases for obtaining a divorce under the old statute. One of those bases was adultery. Even though adultery is no longer a ground for divorce, a trial court in a divorce case may consider a spouse’s infidelity and, depending on the facts proven, may use that affair to alter the decisions it makes on alimony and equitable distribution. A recent Fifth District Court of Appeal case originating in Flagler County offers an example of how this works.

The case involved the divorce of A.L. (husband) and S.L. (wife) after 11 years of marriage. During the trial, the husband offered considerable evidence regarding the wife’s adultery. The court took this evidence into consideration in issuing its ruling on equitable distribution and alimony. The court ordered an unequal distribution and awarded the wife durational alimony for a period of 10 years.

Both spouses contested the trial judge’s ruling on appeal. Both spouses argued, from opposite perspectives, that the trial court did not apply the adultery evidence properly in creating the alimony award. The husband argued that the trial judge should have denied the wife alimony, based on his clear proof of the wife’s infidelity.

The appeals court upheld the trial court’s decision to consider the adultery evidence. It concluded that a trial court is entitled to look at a spouse’s infidelity in deciding the alimony issue. Section 61.08(1) of the Florida Statutes says that a trial court can consider adultery in deciding the amount of alimony to award. However, generally speaking, the primary things that a trial court must consider when deciding alimony are the requesting spouse’s need and the paying spouse’s ability to pay. This is generally true regardless of whether the requesting spouse was, or was not, faithful throughout the marriage. One important exception to this involves financial impropriety. If a spouse who requested alimony previously used and diminished marital assets in the pursuit and furtherance of her adulterous affairs, the law says that the court can use this proof to deny a request for alimony.

In this case, though, the husband had no evidence that the wife used or depleted marital assets as part of her cheating. If he had been able to bring admissible evidence into the case showing such a diminution, he might have had a valid argument for awarding the wife no alimony. Without that proof, though, evidence of the wife’s adultery, by itself, was not enough to allow the trial court to deny the wife alimony.

Adultery can also be costly in cases involving child custody. While the law says that courts should base custody decisions on the best interest of the child, “moral fitness” is a component of this analysis. While an extramarital affair, in and of itself, might not cause a judge to consider a parent less morally fit, a parent who conducts her extramarital affair openly in front of the children might lead a court to find her less fit. In this case, there were no children whose custody the court had to resolve in light of the wife’s infidelity.

Divorces can be complicated matters, since they combine a dispassionate application of the law and the profoundly personal emotions of the spouses. This can be especially true in cases in which adultery was present. When pursuing your divorce case, a knowledgeable advocate can help you achieve a successful result. The diligent and thoughtful South Florida alimony attorneys at Sandy T. Fox, P.A. can offer you extensive knowledge of the law and a keen sensitivity to the facts of your case. Contact our attorneys online or by calling (800) 596-0579 to schedule your confidential consultation.